TaxTMI 
TaxTMI 
2018 (7) TMI 2331
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....ce Method adopted by the TPO is not applicable and in directing the TPO/AO to recomputed the ALP by using TNMM on the ground that the services provided by the assessee are akin to that of S&F Agents and not that of a trader without appreciating that there is no significant difference between the three comparables adopted by the TPO and the assessee in terms of FAR ? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in directing the AO to delete Tata Elxsi Ltd. from the list of comparables ft it is found that the segmental data of the comparable are not available without appreciating that the comparable satisfies all the qualitative and quantitative filters adopted by using the segmental results ? 3. Whether on the facts and in the circumstances of the case, the ITAT was right in holding that the assessee is covered by the amendment of the proviso to section 92C of the Act for the assessment year 2008-09 and directing the AO to give the benefit of the amended provision without appreciating that the proviso was inserted w.e.f. 1.10.2009 by the Finance (No.2) 2009 ? 4. Whether on the facts and in the circumstances of the ca....
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....ivery of computer software under Section 10A of the IT Act are allowed only in Export Turnover but not from the Total Turnover then, it would give rise to inadvertent, unlawful, meaningless and illogical result which would cause grave injustice to the Respondent which could have never been the intention of the legislature. 20. Even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well". 4. Regarding Substantial Question No.4: The allocation of recruitment cost for Section 10A units deriving STPI and Non STPI units of the same Assessee is just and fair. We do not find any substantial question of law to be arising out of the said Order of the learned Tribunal. The findings of the learned Tribunal on this issue is quoted below for ready reference: "6. Having heard both the parties and having considered the rival contentions and also the material o....
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....too midway even though it was not questioned at any time in the past. While referring to the observations of the Hon'ble Supreme Court in the case of Hukumchand Mills, the Hon'ble High court observed that where alternative methods of apportioning of expenses are recognized and there is no statutory or fixed formula, the endeavour can only be towards approximation without any great precision or exactness and if such is the endeavour, it can hardly be said that there is an attempt to distort the profits. Thus it can be seen that where two basis of apportionment are available, following one of the basis consistently is to be accepted. As the claim of deduction u/s 10A during the relevant assessment year is the 9th year in which the assessee is claiming the deduction u/s 10A and the revenue has accepted the method of allocation of expenses in all the earlier assessment years, we are of the opinion that the same method should be adopted for the relevant assessment year also. However, with regard to the discrepancy pointed out by the AO to the effect that there were more employees in the STPI unit while only Rs. 27 crores was allocated towards such unit, whereas there were less employees....
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...., we find that it is covered by the amendment of the proviso to sec. 92C of the Act and that the AO shall give the benefit of the amended provision and not the standard deduction as claimed by the assessee." 6. The controversy involved herein is no more res integra in view of the decision of this Court in I.T.A. Nos.536/2015 c/w 537/2015 dated 25.06.2018 (Prl. Commissioner of Income Tax & Anr. -v- M/s Softbrands India Pvt. Ltd.,) wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable. The relevant portion of the Judgment is quoted below for ready reference: "Conclusion: 55. A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases. Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the ....